One of my minor pet peeves is the attitude of many prosecutors, and going along with that, a common public attitude toward defense lawyers. I should mention right at the beginning that there are many exceptions to this, and that I don't see this at all when it comes to traffic & DWI cases.

So anyway, it comes to this -- many prosecutors can't accept that they have a bad case. Sometimes the evidence just isn't there. I've seen it in a few cases now. Defendant is arrested for allegedly doing X. The prosecution doesn't have much evidence.

In some cases the prosecution moves the case forward because they haven't really thought their case through. In others, they stubbornly push the case forward knowing they have no case. The former comes from laziness or being too busy. The latter results, I think, from a good-guys/bad-guys mindset.

An example of the lazy prosecutor is my client from a while back who was accused of stealing from the store where he worked. The "evidence" was register tapes with suspicious transactions, all of which supposedly took place only when my client was working. From the beginning it was obvious that, even if true, this was not enough. The store did not have the right kind of inventory and accounting controls - they didn't have any such controls. You couldn't tell who was on the register at any moment, and you couldn't tell if a "return" was genuine because the employees did not have to document the item coming back in. They couldn't even prove any money was missing. On top of that, my initial investigation showed that another store employee (the store manager's boyfriend) had a criminal record.

You would think this would be enough to make the Assistant DA say "Hmm". Nope. They went ahead and got an indictment against my client. In my conversations with that ADA, I never got any sense that he cared enough about the case to listen and look into my concerns.

After indictment we got a new ADA. This one eventually listened, but at first she didn't really pay attention. The case was a simple "paper-caper", and my client should take a deal. I explained my concerns but they didn't register. Then came discovery, and we got a look at the register tapes. The new ADA started paying attention, and had a law student intern looking at the tapes along with our expert. I got the sense she was starting to figure out she had a problem, but it wasn't enough to derail the train.

So we showed up for the first day of trial. I presented her with a detailed report from my expert, showing that there were a number of similarly suspicious transactions that had taken place when my client wasn't working. The store manager and a forensic accountant for the prosecution had both testified in Grand Jury that all suspicious transactions had taken place only when my client was working. The ADA's proof was demonstrably false. Frankly, their witnesses lied to the Grand Jury.

I leaned over to her at one point as we were about to pick the jury, and said I couldn't ethically prosecute this case if I were in her shoes. She ran down to the DA and came back up with an ACOD (adjournment in contemplation of dismissal -- effectively dismissing the case).

The other side of this is a case going now. My client is accused of attacking someone along with 2 co-defendants. The victim identified one of the co-D's. That co-D claimed he did not participate but id'd my client and the other co-D. The other co-D admitted participating and threw in my client and the first co-D. But the victim and his friends have never id'd my guy. And I have witnesses - one stating that my guy did not participate and another saying that co-D #2 had said my guy "punked out". I told the ADA about these witnesses but so far that's not making a dent.

So the two co-Ds took deals and agreed to testify against my guy. Unfortunately for the prosecution, guy #2 did not do well in his allocution (where the pleading defendant admits to his actions in front of the judge). He admitted his own participation but waffled badly in saying whether my guy was involved (this could turn into a gripe about defense attorneys not prepping their clients, but ...).

In this case, the ADA insists that she's going to get an indictment and nail my client. She has no reliable witnesses against my guy. Co-D #1 lied initially about his own participation and is getting a very sweet deal to testify against my guy. Co-D #2 has made at least 2 prior inconsistent statements. That's all she's got to tie my client to this. At the same time, we have two witnesses supporting us and my client will testify that he was not involved.

Then again, I expected to hear about my client's indictment by now, and I haven't heard anything. I'm wondering if the Grand Jury refused to indict.

Despite this venting, I have had a lot of good experience with a lot of good prosecutors. You know who you are ....

Wednesday, May 18, 2005

I was retained to handle a malpractice case lately. That case, along with some of my other cases and other things in life prompted the following thoughts about volume businesses.

It seems like certain areas of life have become volume businesses. Walmart is the obvious example. You can't get any service in the store. The prices are low, but the shopping experience stinks and product quality is not a priority.

You see this in law - firms that represent banks in foreclosures are volume businesses. You usually can't get a lawyer on the phone and if you have a genuine problem, no one there has any idea what to do about it. The banks themselves long ago became volume businesses. Bankruptcy lawyers seem to be a volume business also. Same for personal injury when it comes to the heavy TV advertisers.

One of my clients experienced this in the health care field (I'm being vague to avoid any hint of who my client is - though it doesn't matter now and probably no one cares). Her employer focused on selling the professionals on the money they would make, and the patients on low cost. She got in and found out that she was unable to provide any kind of quality service because the employer had ramped up the number of patients to an intolerable level.

My new malpractice case seems to be one where the offending professional didn't take the time to discuss the process with the patient, and ignored the patient after things went downhill. One recent blog post brought up an article in the Wall Street Journal I read not too long ago, about how some hospitals are up on the latest in stroke treatment and others aren't.

I find myself striving to stay out of the world of volume business. I stick to areas of practice that aren't like that. As I think about it now, my days in insurance defense were like this, as the insurance company pressured us and outside firms to squeeze costs. Wasn't too bad where I was but I've heard some horror stories since from other places.

This is certainly a challenge as a lawyer, and it seems like a larger problem for society. We all want things to cost less, but we often end up paying a different kind of price for it.

I was just on a drug-war related topic recently, and so I was reading some related blogs. A couple of good ones are the Drug Policy Alliance blog, and the Drug War Rant on Salon.com. For example, both covered a recent article on Citizens Against Government Waste and its report on wasteful spending by ONDCP (aka the Drug Czar). Click the following for DPA's post and the Rant's post.

There are two provisions in the Criminal Procedure Law allowing a motion to dismiss "in the interests of justice". The provisions (I think it's 170.40 for dismissing an information or complaint, and 210.40 for dismissing indictments) include a laundry list of factors the judge "must" consider if raised and relevant.

The article makes a very specific argument as to why the war on drugs is unconstitutional. Incarceration infringes fundamental rights. When a government policy infringes fundamental rights, the policy must be narrowly tailored to a compelling interest. The drug war does not work, so the policy is not narrowly tailored. So the incarceration of drug offenders is unconstitutional. The article spells this out in great detail, with 30 pages of text and 50 pages of endnotes.

I'm thinking about adapting the argument into a "interests of justice" motion. Combining a "good" defendant (such as a college student with a clean record) with the argument, and adding in some appropriate witnesses on other issues (defendant's character, police conduct, etc.) might put this argument over the top. We'll see if I can get this going.

Thursday, May 12, 2005

For non-lawyers and lawyers who are not experienced with this issue, NY law says you can't get money in a car accident case unless you can show a "serious injury". There are a number of categories that qualify. The easy category is a fracture. If you have a broken bone, you're in. The four categories that lead to close calls are: significant limitation, permanent consequential limitation, permanent loss of use, and "90/180". What that means gets very complicated but it is the critical issue in many car accident cases.

You can read a bit more about this issue on the car accident page of my website.

Today I noticed a blog mentioned marijuana enforcement in a posting 26 Million Joints". I've been a critic for many years of the the War on Drugs. Now as a lawyer I frequently represent defendants on marijuana charges. The most common in New York is "Unlawful Possession of Marijuana" (UPM). It is a very low level offense. The fine and surcharge is usually about $200.

The most common way this comes up is when someone is pulled over for speeding, and then the cop finds marijuana in the car. We can usually get a plea bargain where the driver pleads to UPM and the speed is dropped. This is a very good deal because the UPM does not affect your license.

Sunday, May 08, 2005

As I get into blogging, I'm learning about other blogs out there. Saw an interesting one by "Ernie the Attorney", talking about people finding his site through Google (which is how I found his site). I have worked pretty hard on my firm website to make it do well on Google searches, so I thought that was interesting to see. He talks about the search terms that bring people to his blog. Mine come from searches for things related to local place names (like Albany, Schenectady, Colonie, etc.) along with relevant topics (like speeding tickets, traffic court, dwi, etc.).

I'm pretty psyched about my one very successful non-local listing - I'm #2 on Google for the search phrase - marijuana lawyer. I have a page on the topic of marijuana defense, and I've been a prominent critic of the drug war for quite some time, with a very relevant website: Repeal.NET.

I'm trying to find more blogs relevant to the topics on my blog, but that's going to take time I guess.

Thursday, May 05, 2005

Potential new client called last night, ~ 10 pm. My answering serviced texted me and I called and spoke with the father.

The kid had rear-ended someone and blew a 0.20 BAC on the breathalyzer. That's pretty high. To make things worse, the kid had a DWAI 3 years ago. Short story - his license will be revoked for 6 months minimum. They're having a lot of trouble accepting the reality of this.

DWI laws are too strict, but 0.20 BAC is high enough that I think it's a problem. The penalties for DWI are out of proportion to the offense, but that's the world we live in.

Finally resolved a case today for a client charged with "open container" in Albany City Court. Client was caught with a can of Bud Light on the street outside a bar (Mardi Gras). He had been to City Court several times but couldn't get the case resolved, so he hired me. The first time I appeared, the ADA (Assistant District Attorney) offered to "ACOD" (adjourn in contemplation of dismissal - effectively dismissing the case) if my client agreed to do 16 hours of community service. Apparently the assigned judge likes making college kids do community service.

I thought that was too much for a beer. Client agreed. The City Code provides a fine of up to $150, and/or up to 15 days in jail. No way he was going to get jail. A fine was appropriate. So we refused the deal and he pled guilty. The judge that was there refused to sentence him, told us to come back when the assigned judge was there, and ordered a pre-sentence investigation (PSI). PSI's are usually only done for felonies and serious misdemeanors. This charge is like a parking ticket, so PSI was totally unnecessary. Helped in the end though. We showed up this morning and the PSI said a lot of good things about the client and recommended a fine.

It is difficult for a judge to impose a heavier sentence than what the PSI says, so he was pretty much stuck. He fined my client $100, which is double the usual fine, but that was it. Client was happy. Judge looked pretty ticked at me. I had rubbed in his face that he couldn't do what he wanted. He'll get over it. He's too busy to hold a grudge.

Wednesday, May 04, 2005

The strongest part of my website, in terms of what seems to draw clients, is the traffic and speeding section. A lot of the clients I get are from out of the area. They're driving from downstate to Vermont, or Boston to Buffalo, or something like that. They get a ticket in Albany, Schenectady, Rotterdam, etc. If you think about it, how are they going to find a lawyer here?

If a local person gets a ticket, they may already know a local lawyer, or they can look in the local yellow pages. But an out-of-towner doesn't have those resources. So they look on the web. I run pay-per-click ads on Overture (Yahoo + others) and Google, and I also pay for higher rankings on Overture search. Also, several of my pages are optimized fairly well (like my faq page for speeding tickets).

Once they get to my site they see fairly quickly what I can do for them - I get them a reduction, and they don't have to come to Court. There are no guarantees on either, but I haven't had a problem yet. They also see how much it will cost them and why it is worth the money.